Another week, another published ruling on an en banc rehearing petition from the Fourth Circuit. Last week we saw Judge Niemeyer arguing in a published concurring opinion that en banc review should be denied so that the case of Gavin Grimm could proceed more quickly to the Supreme Court. (Conversely, Judge Wynn concurred with the denial on the grounds that the panel majority was completely consistent with Supreme Court’s recent precedent, and thus there was no need for further review at all, by any court.) Yesterday, Judge Wilkinson and Judge Agee dissented from the Court’s decision to grant rehearing en banc on a challenge to South Carolina’s absentee voting laws. Their reasoning was much the same as Judge Niemeyer’s last week– that the Court should not rehear a matter that is destined for the Supreme Court. And in this particular case, given that it impacts a rapidly approaching election, time is of the essence to get that final decision from the highest court. Stated the dissenting Judges, “Appellants should seek to vindicate promptly their constitutional prerogatives before the only tribunal that can finally and definitively bring an end to this mischief: the United States Supreme Court.”
Both this case and last week’s case highlight a strategic question that practitioners might face in certain circumstances, and that is whether it might be best to forego a petition for rehearing en banc and proceed directly with a cert petition. On the one hand, this might make sense if, as Judge Niemeyer noted, the en banc court will almost certainly affirm the panel. It also makes sense if, as Judges Wilkinson and Agee noted, there is an urgency to the matter. On the other hand, even if the en banc court is likely to deny the petition for rehearing, or grant the petition and affirm the panel, it can certainly help the cause of the cert petition to have a Circuit Judge or Judges publishing their views (either in a concurrence like Judge Niemeyer’s or a dissenting opinion from an en banc affirming opinion) that the Supreme Court should take up the case.
(Many thanks to my partner Greg Holland for being on top of these en banc decisions and sending them the blog’s way)